医疗过失简论

传统过失犯理论(旧过失论)实质是以“结果无价值论”为其理论基础的。对医疗过失的认定方式无异于对医务人员课以事实上的绝对责任,不利于医学的发展及社会生活的进步。以容许危险理论为基础的新过失论,不仅重视结果无价值,更引入了行为无价值,从而缓和了过失犯的成立,对医疗事故的责任认定方式具有指导意义。     

医疗过失简论

传统过失犯理论（旧过失论）实质是以“结果无价值论”为其理论基础的。对医疗过失的认定方式无异于对医务人员课以事实上的绝对责任，不利于医学的发展及社会生活的进步。以容许危险理论为基础的新过失论，不仅重视结果无价值．更引入了行为无价值，从而缓和了过失犯的成立，对医疗事故的责任认定方式具有指导意义。     

英美法对医疗过失的判定原则及对我国的启示

过失是医疗损害责任认定中最为重要的条件,如何确定过失是医疗纠纷和诉讼中最为关键的问题.我国在该问题上的研究及实践均存有欠缺之处,而英美国家在过失判定原则中,其注意义务标准的设定和认定具有一定的合理之处,对我国医疗过失理论研究和司法实践均有借鉴作用.     

论医疗行为的过失豁免--兼谈《医疗事故处理条例》中的过失应如何理解

民法上的过失通常可分为重大过失和轻过失,而轻过失又可以根据合同的性质和注意义务的不同分为具体轻过失和抽象轻过失.由于三种过失的设定范围不一样,故在不同的情况下应适用不同的过失来认定当事人的责任.医疗行为由于其特殊性而以适用重大过失为原则,以具体过失为例外.     

论医疗行为的过失豁免－－兼谈《医疗事故处理条例》中的过失应如何理解

民法上的过失通常可分为重大过失和轻过失,而轻过失又可以根据合同的性质和注意义务的不同分为具体轻过失和抽象轻过失.由于三种过失的设定范围不一样,故在不同的情况下应适用不同的过失来认定当事人的责任.医疗行为由于其特殊性而以适用重大过失为原则,以具体过失为例外.     

英美法对医疗过失的判定原则及对我国的启示

过失是医疗损害责任认定中最为重要的条件,如何确定过失是医疗纠纷和诉讼中最为关键的问题。我国在该问题上的研究及实践均存有欠缺之处,而英美国家在过失判定原则中,其注意义务标准的设定和认定具有一定的合理之处,对我国医疗过失理论研究和司法实践均有借鉴作用。     

The standard of care and expert evidence of accepted practice in medical negligence

The topic of this article is the perennial issue in medical negligence litigation of various kinds of the extent to which it is a defence to a charge of lack of reasonable care that the defendant's conduct complied with accepted professional practice. Recent English interpretations of the controversial Bolam principle are considered, before the current approach of the courts and the Health and Disability Commissioner in New Zealand is described, using case illustrations. In New Zealand expert medical opinion of accepted practice is relevant to, but not conclusive of, the standard of care. There is, however, more freedom than pursuant to the current English approach for a decision-maker to reject expert opinion of accepted practice, because he or she is able to examine not just the logical defensibility of the practice but its overall reasonableness, including where the practice involved a risk assessment on a matter of clinical judgment. A decision to reject expert opinion of accepted practice is more readily made in areas which do not involve assessment, diagnosis and treatment.     

论医疗事故技术鉴定意见的证明力及存在的问题

符合法律规范的医疗事故技术鉴定意见在行政处理医疗纠纷上具有证明力,可以从鉴定人资格和条件、鉴定程序和方法等方面予以印证。但当其作为诉讼中的法定证据鉴定意见使用时,其证据力方面还存在一定问题,尤其与新修订的《民事诉讼法》存在不一致,应予完善,以提高其证据力。     

刑事诉讼证明中事实推定之运用

事实推定都是有基础事实的推定,都是可反驳的推定。事实推定同利用证据进行证明一样,是诉讼证明的一种方法。事实推定可以降低证明的难度,可以有效打击犯罪。对主观方面(如故意、明知、目的等)的证明可以使用事实推定;对犯罪嫌疑人、被告人是否实施某行为的证明也可以使用事实推定。对事实推定的反驳不宜规定过高的标准,只要有合理的可能性即可。事实推定的运用必须遵守严格的规则和程序。该程序应当保证被推定人的知情权,为被推定人提供充分反驳的机会。     

“过失严重度”及其在医疗事故处理中的应用

目的建立“过失严重度”这一描述医疗事故或纠纷综合严重程度的量化指标。方法“过失严重度”以事故级别系数乘以责任大小系数表示。结果经计算,共产生了15个级别的“过失严重度”,从最重的1到最轻的20。结论“过失严重度”可对不同等级、不同责任程度医疗事故的严重程度进行排序,按照这一排序,可使医疗事故与纠纷的处理更具操作性与合理性。     

Medical negligence in drug associated deaths

According to epidemiological studies adverse drug events are one of the most frequently encountered complications during medical treatment, a leading cause of hospitalisation and frequent cause of death. However, medical malpractice claims due to medication errors seem to be relatively rare. Based on a retrospective multicentre study on medical malpractice cases with lethal outcome (n = 4450), drug related cases (n = 575) were further evaluated. In 50% of cases a causal connection between drug therapy and death could be ruled out already after autopsy. In 232 cases a causal connection between drug therapy and death could be approved (drug allergies, relative overdose, wrong application, mix-up of drugs and sepsis after injection abscess). However, within the legal context only in 70 cases a medication error was approved which was in 42 cases causal for death, in 28 not. Administration of contraindicated drugs, incorrect application and relative overdose in renal insufficiency are the prevalent mistakes. Concerning the frequency of ADE in epidemiological studies medication errors are underreported in all data sources on medical malpractice; this seems to be due to the fact that even doctors and attending physicians rarely recognize an ADE; furthermore approving the connection between drug effect and death is extremely difficult for the expert witness.     

The High Court's lost chance in medical negligence: Tabet v Gett (2010) 240 CLR 537

In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.